The Pharmaceutical Services Negotiating Committee (PSNC) has applied to the High Court for a judicial review of the decision to implement cuts to community pharmacy funding in England on the grounds that it believes the secretary of state failed to carry out a lawful consultation on the proposals.
The body, which represents pharmacy contractors, accepts the need for the NHS to achieve efficiencies within the community pharmacy sector, but does not believe that the consultation process on the cuts, which came into effect on 1 December 2016, complied with the requirements of a lawful consultation.
In particular, the PSNC says that the Department of Health (DH) based its decision on poor data, which it did not disclose, rather than updating existing high quality data.
“The PSNC has spent the past 12 months trying to work constructively with the DH and NHS England to enable community pharmacy to help the NHS to meet the increasing challenges that it faces,” says Sue Sharpe, chief executive of the PSNC. “We have sought to avoid taking legal action and very much regret that the process the NHS has followed has made this impossible.”
The application for judicial review says that the DH failed to disclose that it had carried out an analysis of pharmacies’ profitability using Companies House data as part of its impact assessment and did not provide this analysis to the PSNC promptly after the publication of the impact assessment.
The PSNC questions the validity of this analysis as the basis of the assessment of pharmacies’ economic viability and how they might be affected by the changes because of its sample size and the use of accounting returns rather than economic returns. The DH also failed to quantify the number of pharmacy closures likely to be seen as a result of the funding changes.
Since receiving the first letter from the DH on 17 December 2015 advising of the forthcoming cuts, the PSNC has been taking legal advice.
In November 2016, Sharpe hinted that legal action was likely when she told the annual conference of local pharmaceutical committees (LPCs) in London on 2 November 2016 that the PSNC had taken legal advice and “will be doing whatever we can and whatever is wise to challenge this policy”.
In recent weeks, the PSNC has been working closely with other pharmacy organisations to consider legal options, and the National Pharmacy Association (NPA), which represents independent pharmacies, is named as an interested party in the PSNC’s application for judicial review. An expedited hearing has been requested, so that if permission to seek judicial review is granted by the High Court, the hearing will take place as soon as practicable.
Stephen Fishwick, head of communications at the NPA, says the association is “in active discussions with our lawyers concerning our own legal action”.
“As we have throughout the campaign to date, we are working closely with colleagues across the sector to present a united front on this important issue,” he adds.